Defending the guilty: lawyer ethics in the movies.

Author:Sullivan, J. Thomas
Position:Introduction through II. Right to Counsel, p. 585-616

Tom Horn: You think I killed that boy?

Thomas Burke (Defense counsel): That question will never come up between us.

Tom Horn: Why not? It's going to come up in court.

Tom Horn (1)

Introduction: Innocence snd Atticus Finch

Perhaps the most common question that criminal lawyers are called upon to answer involves the moral dilemma, or the perceived moral dilemma, posed by the representation of a client whom counsel knows to be guilty. (2)

Quite often, for counsel, knowledge of a client's guilt is itself a complicated matter because guilt is--at least for the lawyer--a legal issue and is established only when all elements of an offense for which the client has been charged have been established by proof beyond a reasonable doubt. (3)

For many, Attorney Atticus Finch's (Gregory Peck) representation of an innocent African-American accused of rape by a Southern white woman in Depression-era Alabama by the town's most imposing citizen, in To Kill a Mockingbird, (4) represents the consummate portrayal of the lawyer's discharge of his ethical duty to his client. (5) Tom Robinson (Brock Peters) is falsely accused of rape by Mayella Violet Ewell (Collin Wilcox), the daughter of a lower-class, white bigot, Bob Ewell (James Anderson), who caught her at tempting to physically seduce Robinson, an African-American. (6) The Ewells, clearly influenced by the father's racial hatred, (7) address Mayella's unacceptable sexual appetite by testifying against Robinson at trial. Finch's cross-examination of both Mayella and her father demonstrates their probable lack of credibility to most viewers. (9) But Robinson makes a fatal mistake during the prosecuting attorney's (William Windom) cross, explaining that he did chores at Mayella's request because he felt "right sorry for her." (10) His answer prompts the prosecutor's cynical, calculated follow-up question, "You felt sorry for her, a white woman?" (11) Robinson's honest, but unfortunate, admission turns the jury from a possible acquittal to a likely conviction, when Mayella challenges the all-white jury to stand up for the claimed virtue of a white complainant:

I got somethin' to say. And then I ain't gonna say no more. He took advantage of me. An' if you tine, fancy gentlemen ain't gonna do nothin' about it, then you're just a bunch of lousy, yella, stinkin' cowards, the--the whole bunch of ya, and your fancy airs don't come to nothin'. Your Ma'am 'in' and your Miss Mayellarin'--it don't come to nothin', Mr. Finch, not ... no. (12) The film's plot parallels in significant ways the actual prosecution of black defendants in the celebrated "Scottsboro Boys" case, (13) Powell v. Alabama, (14) and, later, Norris v. Alabama, (15) where an all-white jury convicted young black males of raping two white women. (16) In Powell, the Supreme Court reversed the convictions of the defendants in one of three groups of the accused tried together, based on the failure to afford them counsel to assist them at their preliminary hearings. (17) In Norris, the Court granted relief for other defendants based on evidence of deliberate exclusion of African-Americans from grand and petit jury service, respectively. These real life court successes resonate with the message of Atticus Finch's closing argument. Indeed, his closing argument in the film is an inspiring call for justice and an end to discrimination:

I have nothing but pity in my heart for the chief witness for the State. She is the victim of cruel poverty and ignorance. But my pity does not extend so far as to her putting a man's life at stake, which she has done in an effort to get rid of her own guilt. Now I say "guilt," gentlemen, because it was guilt that motivated her. She's committed no crime--she has merely broken a rigid and time-honored code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. She must destroy the evidence of her offense. But what was the evidence of her offense? Tom Robinson, a human being. She must put Tom Robinson away from her. Tom Robinson was to her a daily reminder of what she did. Now, what did she do? She tempted a Negro. She was white, and she tempted a Negro. She did something that, in our society, is unspeakable. She kissed a black man. Not an old uncle, but a strong, young Negro man. No code mattered to her before she broke it, but it came crashing down on her afterwards. The witnesses for the State, with the exception of the sheriff of Maycomb County have presented themselves to you gentlemen, to this court in the cynical confidence that their testimony would not be doubted, confident that you gentlemen would go along with them on the assumption ... the evil assumption that all Negroes lie, all Negroes are basically immoral beings, all Negro men are not to be trusted around our women. An assumption that one associates with minds of their caliber, and which is, in itself, gentlemen, a lie, which I do not need to point out to you. And so, a quiet, humble, respectable Negro, who has had the unmitigated TEMERITY to feel sorry for a white woman, has had to put his word against TWO white people's! The defendant is not guilty--but somebody in this courtroom is. Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I'm no idealist to believe firmly in the integrity of our courts and of our jury system--that's no ideal to me. That is a living, working reality! Now I am confident that you gentlemen will review, without passion, the evidence that you have heard, come to a decision and restore this man to his family. In the name of GOD, do your duty. In the name of God, believe ... Tom Robinson. (19) Unfortunately for his innocent client, Atticus Finch's beautifully scripted and delivered closing argument fails to persuade the jury, which likely turned on Tom Robinson because of his expression of pity for Mayella Ewell, his accuser. (20)

Part of the power of the character of Atticus Finch in To Kill a Mockingbirds inextricably linked to Tom Robinson's innocence. Film audiences, as well as readers of the novel on which the film is based, are undoubtedly moved by his passionate defense of his client. Perhaps overwhelmed by the moral force in Finch's closing argument, viewers likely fail to consider his naive or complicit acceptance of Sheriff Tate's report that Robinson had been killed by deputies when he tried to escape from custody while being transferred back to jail following trial. Clearly, Finch's plea would have had little impact had Mayella's demeanor in making her accusation been more credible, or had the evidence offered corroborative support. Instead, the evidence suggested that her father had, in fact, beaten her when he discovered her in the act of attempting to seduce Tom Robinson. (22) She then felt compelled by cultural custom to accuse Robinson of rape to excuse her own culpability, which Finch explained in his closing argument. (23)

The character of Atticus Finch that inspires so many is so easily unquestioned because of his noble defense of an innocent defendant, accused and convicted on the basis of racial prejudice. But in film, as in real life, defense counsel's character is often shaped by the fact that the accused is either guilty or the accused's guilt or innocence is subject to significant doubt. Counsel is obligated to perform ethically despite the very real possibility that an aggressive defense will result in a guilty defendant's acquittal and the prospect that he will commit other crimes--perhaps violent crimes, such as rape or murder --in the future. That is the scenario that generates the most common question posed to lawyers, including those who do not practice criminal law: how can a defense attorney morally and ethically represent a guilty client? In film, as in practice, defense lawyers represent clients whose guilt may be in question, may be irrelevant, or may be obvious or known to counsel, as discussed through the lens of film in this Article.


    Despite significant, often compelling, evidence of the accused's actual guilt, legal guilt is not established until a jury or trial court--having heard and considered the evidence--arrives at the conclusion that the evidence proves the accused's guilt beyond a reasonable doubt. (24) Moral guilt, as opposed to legal guilt, reflects a different consideration of the competing explanations about the client's actual involvement or blame in the commission of an offense, making the defense lawyer's answer to questions about willingness to represent the guilty client less than clear-cut in many cases.

    When recounting his experience as part of the defense team in the O.J. Simpson case, Professor Alan Dershowitz explained that the search for truth may be misleading (25) because there are many "truths" that may be pursued. The concept of guilt presented in film is often elusive, reflecting a truth about the difficulty of incorporating moral guilt into the system of criminal law--a system in which personal culpability is an acceptable part of the criminalization equation. In virtually all cases involving serious offenses, proof of a criminal intent possessed by the accused is necessary for conviction--the fact that the evidence may show that the accused did the act or failed to do an act is typically not sufficient for conviction. (26) Two important films about legal proceedings in which the issue of guilt is discussed in contexts outside the American experience demonstrate the complexity of the issue of moral guilt and its incorporation into a system of criminal law. Punishment may be imposed as an instrument of policy without concern for the moral guilt of the punished, or punishment may reflect not only an intense search for moral guilt, but also an exercise necessary to affirm the requirement for basic human decency in the rule of law.

    1. Punishment Without Regard for Truth of...

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